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Copyright and the DMCA

The recent explosion of peer to peer (P2P) file sharing applications has led to real-world consequences for educational organizations and their students. Especially at the university level, copyright holders and the associations that represent them are going to new lengths to pursue copyright infringers. Students have been sued, universities and other institutions of higher learning have been warned of the possibility of litigation if they fail to act against illegal file sharing, and network administrators struggle with the ever-increasing amount of bandwidth that P2P applications consume.

In a recent statement to university administrators, the Recording Industry Association of America (RIAA) representatives warned that universities could be held liable for their users' illegal file sharing. Some university officials have felt that they have no choice but to shut down P2P over their networks.

Lawsuits aren't the only incentive for putting a stop to P2P applications. Many organizations with large (and even not-so-large) student populations find that the majority of their bandwidth is taken by P2P applications like Gnutella and Kazaa. Bandwidth that is being used by file traders is bandwidth that isn't available to researchers, videoconferencing and other legitimate high-bandwidth applications. Even when high P2P use doesn't impact mission critical applications, with tight budgets, the cost of bandwidth is too great to be applied to what may be an illegal activity.

So what do policy makers and technical management in institutions of higher education need to know about the state of copyright today and how it relates to them?

As a general rule, senior technology management and network administrators must exercise due diligence in seeing that their networks aren't being used to share copyrighted material. Fortunately, many higher education networks can seek shelter under the ISP provisions in the Digital Millennium Copyright Act (DMCA). The relevant portions of the DMCA state that ISPs cannot be held liable for copyright violations on their networks if they meet a few fairly simple conditions. Organizations that are interested in using the safe harbor provisions of the DMCA should contact their attorneys.

In addition to federal and state laws that govern the theft of copyrighted material, the MOREnet Service Policies mandate that customers refrain from violating any law in general and copyright laws specifically. The AUP puts customers on notice that they must deal with security issues such as copyright infringement. In the event of a lawsuit, plaintiff's counsel could use the MOREnet AUP as evidence that network administrators knew of an obligation to police their networks for copyright violators but acted negligently in ignoring their obligations.

MOREnet makes diagnostic tools such as NetFlow and eHealth available to network administrators to assist them in tracking down problem areas on their networks. See MOREnet's Shared Network Status page at http://www.more.net/network/status.html for more information about these tools.

By analyzing traffic statistics and comparing those statistics with the known signatures of the more popular P2P applications, system administrators can identify areas of concern that should be investigated further. Some organizations also have traffic-shaping edge devices (the TopLayer products, for instance) that can identify and alert administrators to some bandwidth-hogging applications. Customers should use these tools to avoid the risk of a potential lawsuit. An organization's failure to deal with P2P abuse is not only possibly violating the MOREnet AUP and federal copyright law, it is evidence that the organization is not aware of its impact on its network neighbors or the global Internet.

For more information about copyright and the DMCA, contact your organization's counsel.